Liability Exposure To Obvious Dangers

R J Douglas SC

In many respects the tort of negligence is the last outpost of the welfare state (Reynolds v. Katoomba RSL All Services Club (2001) 53 NSWLR 43 at 48 per Spigelman CJ).

The cynicism of which this comment by Spigelman CJ is redolent was perfectly apt in the context in which he was making them, namely in response to a claim brought by an unsuccessful gambler against a services club for the losses flowing from his addiction.

But the comments also echo, obviously, the plethora of comment by the government, and media and community organisations, apropos the recent growth in public liability premiums and the desirability of tort reform.

I deliver this paper, of course, on the heels of the 11th September disaster and the ramping up of public liability premiums, probably coincidentally, that occurred after that event. I also do so on the cusp of delivery of a report of a Federal Government appointed committee as to tort reform which is likely to found the basis for uniform state legislation.

It would be wrong, however, for anyone to suggest that recent decisions in the public liability and related spheres vindicate the case for reform. An examination of the authorities going back to 1998, and perhaps a little earlier, evidence a marked sea-change by the judiciary in disposition to and of public liability claims.

In my view there are two reasons for that, one jurisprudential and the other pragmatic.

First, in an age when in other spheres of the law the community is subject to pervasive statutory regulation and control, the common law has embraced a newfound recognition of individual autonomy and responsibility as fundamental values.

Secondly, unlike in the field of statutory insurance (eg, workers’ compensation, CTP) judges, consciously or subconsciously, with respect, have come to realise that the outcome of a plaintiff’s success in a public liability case, even if deserved. The result imposes a general cost on the community in terms of upward pressure on insurance premiums, and at the level of the individual defendant, may result in that person being unable to obtain affordable insurance cover, with inimical consequence for the maintenance of that person’s financial livelihood or ability to provide community facilities.

With those matters in mind it is apt to focus on the subject.

The sphere of liability I address is public liability in the broad sense, namely the liability of occupiers, both public and private, for injuries to entrants to land or buildings they control, and on or in which they may conduct commercial or public activities.

The Wyong Test:

The Wyong test is familiar to all of you. In my opinion it was the genesis of the problem which ultimately led to the alteration in approach which emanated from the High Court in 1998.

In Wyong Shire Council v. Shirt (1980) 146 CLR 40 at 47-48, Mason J, after addressing the striking of a duty of care, expressed that the putative tortfeasor’s response was dictated by the following test:

…it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when that these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.

The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of the breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.

(my emphasis)

It may be seen immediately that such expression of principle underscores a focus which pays scant regard to the ability of the beneficiary of the duty to exercise reasonable care for his own safety.

In the context of occupiers’ liability, however, it was the law from a very early time that the assessment of the occupier’s duty behoved affording proper regard to the ability of the entrant to exercise reasonable care for his or her own safety.

In one of the classic passages in Indermaur v. Dames (1866) LR1CP 274 Wiles J said at 288:-

And, with respect, such visitor at least, we consider it settled law, that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger, which he knows or ought to know …

(my emphasis)

The judicial resurrection of this concept, as a factor attracting significant weight, is to be found in Phillis v. Daly (1988) 15 NSWLR 65, where Mahoney JA remarked of them, by way of approval in respect of their operations in the general duty of care, as opposed to the outmoded special duty, owed by an occupier:-

There is, in my opinion, a further matter to be taken into account. A person coming upon another’s premises is expected to act reasonably. And this is relevant in deciding what it was reasonable for the occupier to do.

A slavish approach to the application of the Wyong test, with minimal weighting being attached to the obviousness of the risk, is to be seen in decisions such as Anderson v. Mount Isa Basket Ball Association[1997] Aust Torts Rep. 81-451 at 64,588 .

In that case the plaintiff was undertaking basketball umpiring for a nominal fee. She was ordinarily a basketball player but was assisting her Association by umpiring a lower grade game. She had undergone minimal training. She sustained serious injury to each arm when she fell over whilst running backwards on the court. Her fall was due more to her excessive weight than any impediment on the court.

She argued the defendant Association ought have instructed her, in accord with safe practice, to run sideways, not backwards. The defendant argued, inter alia, the risk of falling, if running backwards, was obvious.

The plaintiff failed at first instance but won on appeal. The High Court refused special leave.

The Queensland Court of Appeal found that the risk of injury was not so obvious or ordinary such as to deny recovery, and in fact identified this as a virtue in the plaintiff’s case. Davies JA and Demack J said (footnotes deleted):-

The main factors requiring consideration in determining whether there was a breach of the duty are the magnitude of the risk, the degree of probability of its occurrence, the expense, difficulty and inconvenience of taking alleviating action and other conflicting responsibilities which the defendant may have had … the above statement of facts as requiring consideration in determining breach of duty is not intended to be exhaustive. Two other factors are mentioned in some of the cases are the obviousness and ordinariness of the risk. There are, however, two difficulties in the way of placing too much weight on these factors as negating a breach of duty. The first is the increasing recognition given by the courts to the need to take into account the possibility of inadvertent or even negligent conduct on the part of others and consequently a decreasing weight being given to the obviousness and ordinariness factors. The second is that they assume less relative importance where the risk of injury can be eliminated without undue difficulty or expense.

Romeo:

Whilst the decision, in 1998, of Romeo v. Conservation Commission of Northern Territory (1998) 192 CLR 431 was decided in the context of the duty owed by an occupier public authority, its influence has proved pervasive in the subsequent authorities.

The gravamen of Romeo, relevantly, is that in determining whether an occupier has discharged the duty to an entrant, regard must be had, saliently, to the obviousness of the risk to a person exercising reasonable care for his or her own safety.

Put another way: if the risk of injury from a source of danger is slight because the risk is obvious, the discharge of the duty of care does not require any or as much remedial action.

You will no doubt recall that the unsuccessful claim in Romeoconcerned an inebriated visitor to a recreational area fronting some seaside cliffs in the Northern Territory. The case for the plaintiff was that appropriate warnings or fences should have been put in place to guard against the prospect, which crystallised, of an entrant such as the plaintiff approaching and falling down the cliff face.

Toohey and Gummow JJ remarked (footnotes deleted):

[53] The point from which the appellant fell was not a viewing point except in the sense that visitors used the car park in order to watch sunsets from their cars. It was an obvious part of the cliff, even allowing for the vegetation in the area. And the evidence does not support a conclusion that there was an appearance of a path leading to the edge. If reasonable foreseeability is isolated from any other consideration, there may have been a “risk” of someone falling over the edge of the cliff in the sense used by Mason J in Wyong Shire Council v Shirt:

“A risk which is not far-fetched or fanciful is real and therefore foreseeable.”

But in the present case the risk existed only in the case of someone ignoring the obvious.
[54] In putting the matter in that way, there is a danger of drawing in the question of contributory negligence of the plaintiff to what is a consideration of the duty of care on the defendant. For that reason we think it is preferable to approach the matter on the footing that there was a duty of care on the respondent to take any steps that were reasonable to prevent the foreseeable risk becoming an actuality. But reasonable steps did not extend to fencing off or illuminating the edge of a cliff which was about two kilometres in length. The relationship of the car park to the rest of the Reserve did not call for special precautions at the cliff face nearby. A sign might serve as a warning to someone unfamiliar with the area. But to someone who was familiar, as the appellant was, a warning sign would serve no purpose. Angel J held:

“If there had been a sign or signs, or illuminated signs, near the car park fence … on my view of the evidence, it can not be said that the [appellant] would probably not have proceeded as she did beyond the car park fence, on to the cliff top and over the cliff edge”.

Kirby J remarked (footnotes deleted):-

[123] In judging the measure of the duty which is owed regard will certainly be had to any particular statutory obligations or powers enjoyed by a public authority. But where, as here, the statutory duties are stated in general and permissive terms, the scope of the duty of care imposed by the common law will be no more than that of reasonable care. Where a risk is obvious to a person exercising reasonable care for his or her own safety, the notion that the occupier must warn the entrant about that risk is neither reasonable nor just. In considering whether the scope of the duty extends, in a case such as the present, to the provision of fencing or a wire barrier, it is not sufficient to evaluate that claim by reference only to the area of the Dripstone Cliffs. An accident of the kind which occurred to the appellant might have occurred at any other elevated promontory in every similar reserve under the control of the Commission to which members of the public had access. The projected scope of the duty must therefore be tested, not solely with the hindsight gained from the happening of the accident to the particular plaintiff but by reference to what it was reasonable to have expected the Commission to have done to respond to foreseeable risks of injury to members of the public generally coming upon any part of the lands under its control which presented similar risks arising out of equivalent conduct.

[124] It must never be forgotten that, in defining the measure of the duty of care, a court is not only determining an element essential to the ascertainment of the rights of the particular parties. It is also giving expression to the standards which occupiers of land or premises generally must reach, and possibly insure against, in case similar mishaps befall them.

…

[128] Insufficient attention has been paid in some of the cases, and by some of the critics, to the practical considerations which must be “balanced out” before a breach of the duty of care may be found. It is here, in my view, that courts have both the authority and responsibility to introduce practical and sensible notions of reasonableness that will put a brake on the more extreme and unrealistic claims sometimes referred to by judicial and academic critics of this area of the law. Thus, under the consideration of the magnitude of the risk, an occupier would be entitled, in a proper case, to accept that the risk of a mishap such as occurred was so remote that “a reasonable man, careful of the safety of his neighbour, would think it right to neglect it”. It is quite wrong to read past authority as requiring that any reasonably foreseeable risk, however remote, must in every case be guarded against. Such an approach may result from the erroneous conflation of the three separate inquiries: duty, scope of duty and breach of duty. Although a reasonably forseeable risk may indeed give rise to a duty, it is the inquiry as to the scope of that duty in the circumstances and the response to the relevant risk by a reasonable person which dictates whether the risk must be guarded against to conform to legal obligations. Precautions need only be taken when that course is required by the standard of reasonableness. Although it is true, as the appellant argued, that an occupier is not entitled to ignore safeguards against dangers because of the absence of past mishaps, it is equally true that years of experience without accidents may tend to confirm an occupier’s assessment that the risks of harm were negligible.

(my emphasis)

Hayne J said:-

[158] What is reasonable must be judged in light of all the circumstances. Usually the gravity of the injury that might be sustained, the likelihood of such an injury occurring and the difficulty in cost of adverting the danger will loom large in that consideration. But it is not only those factors that may bear upon the question. In the case of a public authority which manages public lands, it may or may not be able to control entry on the land in the same way that a private owner may; it may have responsibility for an area of wilderness far removed from the nearest town or village or an area of carefully manicured park in the middle of a capital city; it may positively encourage, or at least know of, the use of the land only by the fit and adventurous or by those of all ages and conditions. All of these matters may bear upon what the reasonable response of the authority may be to the fact that injury is reasonably foreseeable. Similarly, it may be necessary, in a particular case, to consider whether the danger was hidden or obvious, or to consider whether it could be avoided by the exercise of the degree of care ordinarily exercised by a member of the public, or to consider whether the danger is one created by the action of the authority or is naturally occurring. But all these matters (and I am not to be taken as giving some exhaustive list) are no more than particular factors which may go towards judging what reasonable care on the part of a particular defendant required. In the end, that question, what is reasonable, is a question of fact to be judged in all the circumstances of the case.

(my emphasis)

In Ghantous v Hawkesbury Shire Council (2001) 75 ALJR 992 at per Gleeson CJ at [6]-[8], Gaudron, McHugh and Gummow JJ at [163], Hayne J at [339] and Callinan J at [355]. the emphasis on the entrant exercising reasonable care for his or her own safety was reiterated, the plaintiff failing in the action.

Whether the source of danger was readily open for perception was considered salient by Gaudron, McHugh and Gummow JJ:

[163] The formulation of the duty in terms which require that a road be safe not in all circumstances but for users exercising reasonable care for their own safety is even more important where, as in Ghantous, the plaintiff was a pedestrian. In general, such persons are more able to see and avoid imperfections in a road surface. It is the nature of walking in the outdoors that the ground may not be as even, flat or smooth as other surfaces. As Callinan J points out in his reasons in Ghantous, persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes. Of course, some allowance must be made for inadvertence. Certain dangers may not readily be perceived because of inadequate lighting or the nature of the danger (as in Webb v The State of South Australia), or the surrounding area (as in Buckle, where the hole was concealed by grass). In such circumstances, there may be a foreseeable risk of harm even to persons taking reasonable care for their own safety. These hazards will include dangers in the nature of a “trap” or, as Jordan CJ put it, “of a kind calling for some protection or warning”. In Romeo, Toohey and Gummow JJ noted in a different context that the care to be expected of members of the public is related to the obviousness of the danger. Kirby J pointed out in the same case that even an occupier of premises “is generally entitled to assume that most entrants will take reasonable care for their own safety”. Each case will, of course, turn on its own facts.

Private Residences:

Recently the Queensland Court of Appeal, in Borland v. Makauskas[2000] QCA 521, applied the above observations in Romeo in overturning a jury verdict in favour of a plaintiff who, when inebriated, dived from a pool fence, at a private residence, towards the adjacent canal, falling short of the deep water and hitting the bottom. The risk was quite obvious. The court concluded that at para 16 in the judgment of the court:-

In the present case ‘the risk existed only in the case of someone ignoring the obvious’ (Romeo at 455 per Toohey and Gummow JJ), and the respondent’s conduct was foolhardy in the extreme. To have required the appellants to erect a warning sign or to alter the construction of the fence would have been neither reasonable nor just (see Romeo at 478 per Kirby J). Even if the jury accepted the respondent’s protestations that he would have heeded a warning sign they could not have reasonably answered question 1 in the affirmative.

Retail And Like Premises:

In Dailly v. Spot-On Investments Pty Ltd [1995] Aust Torts Rep. 81-363, the New South Wales Court of Appeal dealt with a case in which an entrant to a commercial shop backed into a display rack and suffered injury.

Taking up the closing words of Mason J in Wyong, namely “the magnitude of the risk and the degree of probability when combined with other relevant factors” Sheller JA remarked at 52,709:-

In the present case relevant factors are that display stands are commonplace in shops, the display rack was obvious, the defendant could reasonably expect that people coming into the shop would proceed around the display rack so as to avoid it and the display rack was in such a position as would not appear to a reasonable person to create a situation of danger likely to cause serious injury to a visitor to the shop.

A like approach was adopted in Rasic v. Cruz [2000] NSWCA 66. The plaintiff succeeded, barely, on the facts when he backed into a bag dispenser in a corner store. Fitzgerald JA, in dissent, but still aptly, remarked at [42]:-

[38] The appellant’s case on liability depended on a report by a “forensic engineer”, who had not inspected the area prior to trial, and whose description of it was in a critical respect inconsistent with the evidence of the appellant’s husband, whom the trial judge accepted as a “frank witness”.

[39] The forensic engineer’s opinion that the plastic bag dispenser was a “foreseeable hazard”, although apparently only when “empty of plastic bags”, seemed to be dependent upon his erroneous estimates of the width of the aisle and the distance to which the plastic bag dispenser protruded.

[40] Although the respondents’ real fault in the eyes of the forensic engineer seemed to be their omission to refill the plastic bag dispenser before the appellant bumped into it, he suggested other possible locations for the dispenser.

[41] Those suggestions are interesting, but of little relevance. The respondents were entitled to place the plastic bag dispenser where they chose, provided that its position was consistent with their duty of care to its customers, most of whom no doubt ordinarily walk forward with their eyes open. The world is full of “foreseeable hazards” for people who do otherwise.

[42] A shopkeeper owes a duty of care even to careless customers. However, a duty of care is not a general duty to protect careless people from the consequences of their own carelessness. The test of reasonable care is not whether the safety of the shop could be improved.

[43] An infinite variety of circumstances produce a foreseeable risk of injury which could often be eliminated or reduced. The current tendency to consider only individual circumstances which produce injury and the means by which those circumstances could have been changed and the injury avoided is redefining the foundation of the law of negligence by impermissibly expanding the content of the duty of care from a duty to take reasonable care to a duty to avoid any risk by all reasonably affordable means. Such an approach pays insufficient regard to the degree of the risk of injury from the particular circumstance which caused injury and to the time, effort and cost of avoiding the risk of injury from all circumstances which might have caused injury and the financial capacity of a defendant to undertake such a task. A situation immune from criticism by an imaginative forensic engineer cannot be achieved by the removal of isolated risks but necessitates the removal of all sources of risk.

[44] The point can be illustrated by reference to fruit shops, which commonly have cabinets with doors with protruding handles, which could be recessed, and perhaps glass panels, which could be laminated plastic, shelves with jutting edges, which could be removed, boxes of produce extending into the public floor area, which could be put away, and uneven floors, which could be levelled. Perhaps a forensic engineer could design a shop in which customers could walk backwards or with their eyes closed without any risk of injury. However, premises which do not meet that requirement are not for that reason unsafe, and a shopkeeper has not, for that reason, breached his or her duty of care to a customer who is injured walking backwards.

[45] Ridiculous and exaggerated claims, sometimes followed by appeals when they are unsuccessful, are increasingly frequent. Employers, motorists, hospitals and schools, for example, or rather their insurers, have become virtual insurers of those who are injured by their activities. There might be good policy reasons for this. However, unless its evolution is appropriately controlled by judicial commonsense, fundamental concepts will be incrementally eroded and the law of negligence will eventually require each citizen to make life a risk-free activity for everyone else.

[46] In my opinion, the point at which suburban shopkeepers must design their premises to avoid the risk of injury from plainly visible, ordinary objects to customers who move backwards without first looking has not yet been reached.

(my emphasis)

A like approach was adopted in David Jones Ltd v. Bates [2001] NSWCA 233. There a person fell in a department store when moving from a carpeted floor to a sealed floor. There were the usual distractions associated with department stores. The sealed floor was not slippery.

Referring to Phillis and Ghantous, Young CJ in Eq, with whom Heydon JA and Davies AJA agreed, referred to the above extract from Rasic as being a correct statement of the principles. Dismissing the plaintiff’s claim his Honour said:-

The authorities are replete with statements that many premises contain objects or structures which could cause injury, and nowhere can any place be made completely safe, and that the occupier of the premises can reasonably assume that people will take reasonable and due care for their own safety.

In Franklins Self Serve Pty Ltd v. Bozinska [1998] NSWCA (14th October 1998), a plaintiff was successful, but with 50% contributory negligence, in a case where she stood on a supplied wire basket in order to access produce on higher shelves at the defendant’s supermarket.

Mason P dissented but, in a fairly cogent judgment, made the following comments in respect of the case that the plaintiff ought to have been warned by the defendant not to stand on the basket as it would not (as it didn’t) support the plaintiff’s weight:-

Surely this was to restate in written form that which was or ought to have been clearly apparent to all but the most short-sighted or stupid customers. It is true that a duty of care may be breached when the defendant fails to take steps designed to protect the short-sighted or the foolish. But it does not follow that failure to warn inevitably betokens negligence. Foreseeability of possible injury is relevant, but not determinative.

There may be contrasted, as an example of a hidden or concealed danger, Burns v. Hoyts Pty Ltd [2002] NSWCA 5. There the plaintiff was attending a cinema operated by the defendant. The seats in the cinema automatically retracted when unoccupied. The plaintiff a teacher attending the cinema with some of his young students. During a film he alighted from his seat to attend to a child, his seat reverting to a vertical position. He then attempted to sit on the retracted seat and suffered injury to his coccyx.

The trial judge found against the plaintiff, finding that the seats were not inherently dangerous and that patrons, including the plaintiff, should be aware that the seats would retract.

The plaintiff succeeded on appeal. It was found that there was a reasonably foreseeable risk that a patron in a dark cinema would not be aware that the cinema seats automatically retracted when the plaintiff stood up and that the patron may attempt to sit without putting the seat down. The display of a warning sign to patrons in the foyer before entering the cinema, about the retraction of the seats, was a simple measure which may have been put in place.

Public Places:

I have ready referred to Romeo.

Ghantous is another example of a plaintiff being unsuccessful in an action against a local authority. There the plaintiff was traversing a footpath which altered in level, the alteration being patent.

The important concept which emerges from Ghantous is that the pertinent consideration, of an entrant exercising reasonable care for her own safety, will only diminish in moment in the discharge evaluation process in the event that the danger in question is one which is concealed, in whole or in part.

In my view the lodestar for resolution of “change of level” cases, emanating from Ghantous, was expressed pithily, by Callinan J at [355]:-

The world is not a level playing field. It is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course as they walk along.

A recent Queensland example of the issue I am addressing is Soper v. Gold Coast City Council [2002] QCA 118. There the plaintiff parked her motor vehicle in a carpark controlled by the defendant council adjacent to a causeway. She wished to make her way down to the causeway where her husband was netting (according to the judgment) “juvenile eels”. A picnic area controlled by the council adjoined the carpark.

Although the picnic area had been developed by the council, the banks of the river at the causeway had not. There were roughly formed steps down to the causeway from the edge of the picnic area. Further there was a grassy embankment joining the varying levels of the carpark and nearby road.

The plaintiff was injured when she fell whilst traversing the grassy slope. She could have used the steps albeit this would have taken a little longer. She argued there should have been more convenient access steps or appropriate directing signage. She failed at first instance and on appeal.

The Court of Appeal approved the following statement by the trial judge:-

To insist every grassy slope be signposted, fenced off and/or step constructed adjacent to the slope would result in the public areas being pock marked with signs, fences and steps leading nowhere in particular. Considerations of convenience and general amenity do not support a requirement on a local authority to signpost, fence or provide steps.

The court, in the judgment of Mullins J, with whom Davies JA and Muir J agreed, said:-

In the light of the learned trial juges findings about the common occurrence of grassy slopes in the respondent local authority’s area the risks of slipping being known to the users of the carpark on this particular grassy embankment, the likely injuries which would follow from slipping and the river area being underdeveloped, there was no error in the learned trial judge’s conclusion about what was required of the respondent as a reasonable occupier.

To like effect is Wilkinson v. Law Courts Ltd [2001] NSWCA 196. There the plaintiff fell down the steps outside the law courts building at Sydney. He suffered a broken ankle. At the time he was 34 years of age, fit and able-bodied and had good eye sight.

There was no handrail, edged delineation strips nor warning signs present on or near the steps, which were rather grey in hue and apparently rather worn. Subsequent to the accident some handrails were installed as were edged delineation strips, but essentially for the purpose of persons with disabilities (many of whom litigate in the New South Wales Supreme Court).

The plaintiff failed at first instance in the New South Wales District Court and on appeal.

The kernel of the evidence at first instance, and the trial judge’s disposition of evidence were as follows:-

Dr Emerson stated in his report:

‘However, the dirty grey colour without distinguishing markings allows the non standard stairs to blend in with the general stair environment and does not give adequate depth perspective and readily promotes a stumbling accident. Persons such as the plaintiff are socialised to accept the normal design of higher and shorter steps elsewhere and as a result of encountering the subject steps are likely to become disoriented and stumble. I would however state that a staircase such as the one under consideration should have had proper step edge delineation, so as to highlight the edges of the step. Such step edge delineation can be achieved by the provision of painted yellow or white lines with tread safe paint, such as were applied to the staircase following the incident.’

I have already dealt with the assertion that the stairs were non standard. I accept that they were of a dirty grey colour at the time of the accident. I am not persuaded, however, that to any sensible observer they did not give adequate depth perspective, or that they readily promoted a stumbling accident. There was no evidence of any previous accident to any person on the steps that could have been attributable to their size, colour or absence of edge delineation. That does not determine the matter, but it is relevant to a consideration of the ambit of the duty of care that the defendant owed to the plaintiff as he was using the steps.

Insofar as there was any risk of injury to people such as the plaintiff using the stairs it was the sort of danger that was inherent in the fact that they were stairs. Any danger that existed was obvious and such as could be avoided by the exercise of reasonable care by people without disability as they were descending them. I am not satisfied that their shape or colour required that the defendant, as a reasonable occupier, should have provided before the accident any edge delineation.

I am also not satisfied that the plaintiff fell because of the absence of any such edge delineation.

Heydon JA, with whom Meagher JA and Rolfe AJA agreed concurred with these reasons:-

[32] In my opinion the trial judge’s reasoning is wholly convincing. Stairs are inherently, but obviously, dangerous. Many measures might have been taken to make the stairs as safe as human skill could possibly make them; but the duty is only to take care which is reasonable under the circumstances. Among the essential circumstances is the following fact: “persons using steps may misjudge their footing and slip or trip but this is an everyday risk which members of the public avoid by taking care for their own safety”: Stannus v Graham (1994) Aust Torts Reports 81-297 at 61,566 per Handley JA. There are many places in Sydney where the steps do not have strips on the edges: the Public Library, the Art Gallery, Parliament House, St James Church and St Mary’s Cathedral: Black 51J-51R.

[33] The criticisms made by the plaintiff in relation to the danger of falling on the steps naturally focus on what in fact happened to the plaintiff. But if the degree of attention to safety which the plaintiff submitted to be appropriate was in fact appropriate, much more would have been necessary to deal with the risk of injury happening in other ways (see generally Jones v Bartlett (2000) 75 ALJR 1; 176 ALR 137 at [19]; Taber v NSW Land and Housing Corp [2001] NSWCA 182 at [60]). Dr Emerson complained of the dimensions of the steps, the lack of marking and the absence of handrails (presumably one on each side of a user of the steps would be called for ideally). He also referred to the absence of a “simple warning sign”, which he said, “would have provided sufficient stimulus to the Plaintiff to be aware of the hazard of the non-standard steps” (Blue 12B). But the steps are used by many persons who speak English badly, so the warnings would have to be in more than one language. Perhaps there should be other warnings about the danger of descending steps in wet weather, the general need for care in using steps, the need to look out for persons manoeuvring trolleys or wheelchairs or television cameras, and so on. The more the warnings, the less the effectiveness of each. The human imagination can conjure up many circumstances in which a user of the steps might suffer injury. A particular measure directed to the avoidance of a particular type of injury might in itself be relatively inexpensive and relatively easy to implement. But if measures are to be taken to reduce all the dangers which can be imagined, very heavy burdens would be imposed: yet the form of injury from which the plaintiff suffered does not appear any more likely than most of the other imaginable forms of injury. This highlights the difficulty which confronted the plaintiff in isolating the three matters on which he relied to establish a breach of duty.

Sporting Entrants And Participants:

In Agar v. Hyde (2000) 201 CLR 552 the High Court held unanimously that it was not arguable that a sporting administrator, namely the ruling body of the Australian Rugby Union, owed a duty of care with respect to the promulgation of the code’s rules.

McHugh, Gummow and Hayne JJ said:-

[90] The decision to participate is made freely. That freedom, or autonomy, is not to be diminished. But with autonomy comes responsibility. To hold that the appellants owed a duty of care to Mr Worsley would diminish the autonomy of all who choose, for whatever reason, to engage voluntarily in this, or any other, physically dangerous pastime …

In Woods v. Multi-Sport Holdings Pty Ltd (2002) 76 ALJR 483, the entrant to an indoor cricket centre suffered injury when the cricket ball, a flexible ball modified for such form of the game, struck him piercing the visor of a helmet he was wearing, with which he was supplied by the defendant centre owner. He suffered an eye injury.

The plaintiff was unsuccessful in his claim. The case was decided in tort, as modified by the Western Australian occupiers’ liability legislation.

Two members of the majority, Gleeson CJ and Hayne J considered that a warning was not required, by the centre owner, of any risk that the ball may pierce the visor and injure his eye. Hayne J remarked:-

The trial judge found that the risk of being hit (by the ball, by a bat, or by another player) was an obvious risk of the sport. When one of the recognised techniques of the sport is to bowl the ball at the player who is batting at such a speed that it cannot be hit, the risk of being hit by the ball when batting is indeed obvious. It is no less obvious that the risk of injury would vary according to the part of the body that is hit, according to the force of the blow, and according to what it was that struck the blow – the ball, the bat, or another player. And in a fast moving and energetic game like indoor cricket, a collision with any of the equipment used in the game or with another player may be very serious indeed. A blow to the head or to the region of the eye could well cause very serious injury – more serious than a similar blow to some other part of the body. That a player could suffer serious injury, even permanent and disabling injury, by playing this sport was evident to all participants in it. Reasonable care did not require the respondent to warn participants of that. Nor was there any reason to single out one form of injury and warn of that. There is, therefore, no reason to disagree with the trial judge’s conclusion that reasonable care did not require the respondent to warn of the specific risk of eye injury.

(my emphasis)

Kirby J, in dissent, considered that a superior result to the plaintiff would have obtained had the case been conducted in contract, and in any event in tort having regard to the payment by the plaintiff of a fee for entry and use of the facilities.

His Honour remarked:-

[106] Fourthly, the appellant paid a fee to enter the respondent’s premises and participate in the game in which he was injured. He was therefore an entrant upon the premises as of contractual right. In the traditional formulation, he was entitled to enter and use the premises for the mutually contemplated purpose in accordance with an implied warranty that the premises were as safe for that purpose as reasonable care and skill could make them. In Calin v Greater Union Organisation Pty Ltd, this Court explained that the reformulation of the common law in respect of the liability of occupiers to entrants, expressed in Australian Safeway Stores Pty Ltd v Zaluzna and the decisions that preceded it, had not overruled the principle governing the liability to contractual entrants stated in Watson v George. In the present case, legislation had been enacted in Western Australia to govern occupier’s liability. In the way the case was fought, any higher obligations owed because the appellant entered by contractual right were not explored. However, it is self-evident that a commercial enterprise, conducting a leisure business for profit involving specific dangers, is not, in relation to a fee-paying entrant, in the same position as the voluntary organiser of an informal group of amateurs playing an occasional game of cricket on the village green. Nor, for that matter, is it in the same position as a national corporation conducting a major sporting fixture before a stadium audience of thousands, perhaps broadcast to millions, with wide media coverage sold for high fees. By the common law, the duty owed to players adapts to the circumstances. An important consideration in expressing the content of the duty of care, and in determining whether there has been a breach in the particular case, is whether the participants have paid, or been paid, for the sporting activity in question.

(my emphasis)

I mention this approach because reliance by the plaintiff on the more exacting contractual warranty may circumvent the consequence of the risk being obvious, leaving this fact operative perhaps only on the issue causation: see Alagic v. Callbar Pty Ltd (2000) 137 NTR 1 (FC).

In Buttita v. Strathfield Municipal Council [2001] NSWCA 365, the unsuccessful plaintiff attended the golf course operated by the defendant council. He fell and was injured whilst walking down a grassy slope adjacent to a green.

Giles JA, with whom Spigelman CJ and Fitzgerald AJA agreed:-

Golf courses are not nurseries. They have grass, dirt and slopes, and because golfers brave the weather the grass, dirt and slopes may become slippery during and after rain. Reasonable care to make a course safe for the purpose of playing golf does not require that every slope which may be slippery either is not initially constructed, or is not re-configured, or is barricaded off or signposted. It is obvious to golfers as an ordinary incident of their golfing life that a slope such as that on the back of the 16th green, even on the appellant’s case not dangerous when dry, may be slippery during and after rain … golfers could see the steepness of the slope, that there was grass and undoubtedly dirt beneath the grass, and on this occasion that the slope was wet and the ground was water laden.The potential for sliding and slipping was there to be seen and I do not accept that this was, avoiding the old words of a concealed trap and using words later adopted by the appellant, a hidden hazard. The appellant could have walked to the side and approached his ball by going around the edge of the green instead of going down the slope, which was not a very long additional walk.

(my emphasis)

In Lanyon v. Noosa District Junior Rugby League Football Club Inc[2002] QCA 163, the unsuccessful plaintiff ruptured his achilles tendon when his foot went into a depression on a training ground whilst he was coaching rugby league. There had been an exposition on the ground the previous weekend which had created the depression. His case was that the football club, a volunteer organisation, should have inspected the ground to detect and ameliorate the depression, before allowing the coaching session to ensue.

The plaintiff failed. The content of the defendant’s duty did not extend to inspecting the ground to ensure the plaintiff’s safety. The plaintiff was a certified coach and, by training and experience, was in as good a position as the defendant to carry out such inspection to detect any risk.

A contrasting case is Canterbury Municipal Council v. Taylor [2002] NSWCA 24. There the Council owned and operated a velodrome with an inner field on which touch football was played. It permitted or acquiesced in the field and the velodrome to be used contemporaneously. A cyclist was injured when a touch player stepped back onto the track.

Whilst taking full cognisance of the fact that the cyclist could see that the touch players were playing in proximity to the velodrome, it was found that such knowledge precluded a breach by the Council in allowing contemporaneous use.

Finally, in this sphere of case I refer to Prast v. Town of Cottesloe[2000] WASCA 274.

There the plaintiff attended the beach controlled by the Council was rendered a tetraplegic after being dumped when body surfing. He argued that a warning ought have been posted by the Council as to the risks associated with body surfing at the beach. He failed on the issues of breach of duty and causation respectively but as to the former the court said (per Ipp J):-

[43] Sea conditions often change. Currents, rips and surges unexpectedly materialise. Large and unexpected waves materialise out of the deep. These phenomena are all capable of causing serious injury or death. The currents and rips can take an unsuspecting swimmer far out to sea and result in drowning. Surges and unexpected large waves can hurl an unsuspecting swimmer against rocks or on to the sea shore, with serious damage to body and limb. And yet to suggest that signs should be placed on all beaches in Australia indicating that swimming in the sea could lead to serious injury or death would, I suggest, be absurd. The absurdity lies in the obviousness of the danger that attaches to the common, everyday, activity of swimming in the sea. There is no need to warn of the ordinary risks that are so involved, and it would be absurd to require that to be done. In my opinion, the risks attendant upon body-surfing fall into the same category. Of course, where there are dangerous currents or rips or surges or rocks, or the possibility of occasional “king” waves or other dangers that are peculiar to a particular beach or part of a beach, special warnings may be called for, but that is not this case.

[44] In my opinion, a local authority charged with maintaining safety at a popular metropolitan beach is not required, in discharge of the duty of care it owes to those who come to swim on the beach, to warn about the risks of body-surfing. Negligence at common law is still a fault-based system: Perre v Apand Pty Ltd (1999) 73 ALJR 1190 (per McHugh J at 1214). As a matter of law, there is a point at which those who indulge in pleasurable but risky pastimes must take personal responsibility for what they do. That point is reached when the risks are so well-known and obvious that it can reasonably be assumed that the individuals concerned will take reasonable care for their own safety: Romeo v Conservation Commission of the Northern Territory.

(my emphasis)

In Enright v. Maroochydore Shire Council & Hyatt Coolum, which went to trial and was reserved before Moynihan J, in the Queensland Supreme Court in June 2002, the deceased was a New York Tax Lawyer who was visiting the Hyatt at Coolum, within the Maroochy Shire, for a business conference with Pepsico of which he was Vice-President for World Taxes. He drowned at Yaroomba Beach at about 6.00 pm in about May 1993.

On the uncontested facts he was a person reasonably familiar with aquatic sports and pastimes. He had surfed at Long Island during holidays, owned a runabout and had obtained a diving certificate much earlier in his life. He was about 46 when he died, somewhat over-weight and only of modest fitness.

He arrived in Australia on the morning of his death, conferred most of the day and went swimming with a friend late in the afternoon. He was dropped off about 800 metres north of the dedicated Hyatt bathing area, which had been closed, by a Hyatt bus driver who found he and a companion walking along a nearby road, apparently lost, attempting to make their way to the beach.

There was no sign at the beach entrance he accessed giving any warning about swimming between the flags and the safety thereof or about any lack of safety in respect of the relevant beach. His companion said that they were looking for the flags, didn’t find them, so they went swimming in any event.

There were no other persons on the beach nearby, from the time they entered until the time the plaintiff got into difficulty about 40 minutes later. No buildings overlooked the beach. Almost immediately upon entering the plaintiff and his companion felt and discussed the fact that they were being swept down the beach but proceeded to body surf notwithstanding, repeatedly surfing to the beach and moving back up in an attempt to maintain their position. The deceased swam to the point of exhaustion.

I make no further comment about the case. There were other relevant facts too complex to mention. The decision is reserved. Significant questions of duty, breach of duty and causation are involved. As to the latter, as in all warning cases, difficult questions of causation, founded on the subjective theory pertaining thereto, arise.

The decision is eagerly awaited. The claim, by the next of kin, is for a very substantial sum.

Licensed And Gaming Premises:

Occupiers of commercial premises, obviously, attract entrants thereto for the purpose of commercial profit.

A supermarket or shopping centre seeks to attract purchasers of goods and produce. Hotels and clubs seek to attract purchasers of food and drink, and often to encourage customers to use gaming facilities thereat.

Does a hotel or club proprietor owe a duty of care to the entrant transcending the static or transient condition of the premises?

The recent cases suggest in the negative.

In Reynolds v. Katoomba RSL All Services Club (supra), the New South Wales Court of Appeal concluded that a licensed gaming club owed no duty of care to a compulsive gambler so as to obviate or minimise the risk of financial loss accruing by pursuit of the addiction in use of the club’s gambling facilities. The club knew of his addiction and that he and his father had previously requested the club not to cash his cheques.

The law should not recognise a duty of care to protect persons from economic loss, where the loss occurs following a deliberate and voluntary act on the part of the person to be protected. There may be, however, an extraordinary case where a duty should be recognised: per Spigelman CJ at 17.

Spigelman CJ founded the decision of the court upon the “significance of the common law’s protection of autonomy of the individual” evidenced by the decisions of the High Court in Perre v. Apand Pty Ltd(1999) 198 CLR 180 at [114]-[115] and Agar v. Hyde (2000) 201 CLR 552 at [89]-[90].

A like approach was adopted by the New South Wales Court of Appeal in a decision, handed down last Friday, in a matter of South Tweed Heads Rugby League Football Club Limited v. Cole [2002] NSWCA 205.

There, the plaintiff was seriously injured when struck by a motor vehicle driven by the defendant club. The plaintiff had been drinking at premises operated by the defendant club and had consumed a large quantity of alcohol throughout the day. After becoming intoxicated she was refused service and was eventually ejected on account of such intoxication.

The club had offered to call a taxi for the plaintiff as well as offering her use of the club bus. One of her companions had told the club manager he would look after her. She left the club and about half an hour later was struck, as a pedestrian, whilst walking along a road in the darkness.

The plaintiff succeeded at first instance but failed on appeal.

In a judgment by Ipp AJA, with whom Heydon and Santow JJA agreed, it was found that a licensed club owed no duty of care in respect of a person who drank himself or herself to intoxication. The competing considerations militated against the existence of such a duty.

[170] Then, there is the problem of the customer who is the only intoxicated person amongst a group of patrons. What happens if the sober customers order alcohol and give some to the inebriate? What steps, if any, must the innkeeper take to prevent this from occurring? Must the innkeeper refuse to supply the sober members of the group? Or must he or she obtain undertakings from those who are sober not to give alcohol to the inebriate? And how are the undertakings to be policed? Would an innkeeper, who supplies alcohol to a sober patron, (who, in turn, gives some of the alcohol to a drunken friend), thereby breach a tortious duty to the friend? Allied to this kind of quandary is the difficulties innkeepers would face in guarding against persons who, unbeknown to them, arrive on the premises in an intoxicated state, or having already consumed a fair amount of alcohol.

[171] Once the innkeeper notices that a person is intoxicated, what is then to be done? Ask the person to leave (as s 44A(4)(a) of the Act evidently requires)? But if that person leaves and then has an accident because he or she is intoxicated, the innkeeper may still have breached such an extended duty of care. If the person concerned refuses to leave and refuses offers of transport, the position is obscure. If the innkeeper calls the police and the person, in the interim, leaves, is the innkeeper liable for injury if the person leaves in a drunken state? Must the innkeeper detain the person? But by what authority? Without proper authority, a different kind of tort would be committed. If the police arrive, what are they to do? Merely eject the customer? But that would solve nothing. They would surely not be required to take the customer home. Must they make an arrest? The proposition that police must be called to arrest every patron of a bar (or other establishment that serves alcohol) who seems to be intoxicated seems to be so extreme as to be absurd. What that would do to the availability of police in this country to combat more serious crime does not bear thinking about.

[172] What if the inebriate indicates that he or she wishes to indulge in some sexual activity with persons who look as if they may take advantage of the vulnerability of the person concerned? This, after all, may have been the situation that arose in this case. Must the innkeeper interfere? Again, by what authority? And what an angry and affronted response interference of that kind would probably evoke.

[173] These questions cannot readily be answered. The recognition of such an extended duty is fraught with an infinite variety of practical problems. The innkeeper would be placed in a virtually untenable position.

[174] The strength of the conventions on which the rule of law rests will be undermined if, in the course of ordinary daily life, duties are imposed on citizens that are puzzling and uncertain in scope, require impractical measures for compliance, and are contrary to long-standing community values of personal responsibility, self-reliance and, indeed, commonsense.

[175] The position in regard to the duty owed by an innkeeper to an intoxicated plaintiff is not entirely dissimilar to that involving a gambling house and a compulsive gambler. There is a significant and obvious difference in that the potential harm to a gambler is financial (and emotional) whereas the potential harm to an intoxicated person is usually physical. In addition, an addiction to gambling may also, perhaps, be regarded in a different qualitative light to the compulsion experienced by a person, already affected by alcohol, to continue drinking. But the underlying principle that prevents the law recognising the existence of a duty in the gambling situation is nevertheless of relevance. The law does not recognise a duty of care “to protect persons from economic loss, where the loss occurs following a deliberate and voluntary act on the part of the person to be protected” (per Spigelman CJ in Reynolds v Katoomba RSL All Services Club at 46). In my opinion, save perhaps in extraordinary cases, the law should not recognise a duty of care to protect persons from harm caused by them becoming intoxicated by alcohol following a deliberate and voluntary decision on their part to drink to excess.

…

[195] In my opinion, the Club owed to Ms Cole only the ordinary general duty of care owed by an occupier to a lawful entrant. The scope of that duty should not be enlarged to an extent that required the Club to cease serving alcohol to Ms Cole when it knew that it was likely that she would become intoxicated, or when she was obviously intoxicated.

[196] In my opinion, as a general proposition, considerations of personal responsibility, autonomy, practicality and certainty override those factors such as foreseeability, proximity, control and vulnerability which have persuaded some courts, in similar circumstances, to extend the scope of the general duty of care.

[197] There may, however, be circumstances which bring about a different result. For example, it may be that where a person is so intoxicated as to be completely incapable of any rational judgment or of looking after himself or herself, and the intoxication results from alcohol knowingly supplied by an innkeeper to that person for consumption on the premises, the scope of the duty of care of the innkeeper will be extended to require reasonable steps to be taken for the protection of the intoxicated person. But Ms Cole’s case was not put on this basis and it is not necessary to deal with the issue.

[198] Nothing said above is intended to apply to the situation where an intoxicated person causes damage to third parties. That is not this case. Different considerations, of which account would have to be taken, would come into play in such a situation.

(my emphasis)

The court went on to find that such absence of duty exculpated the defendant club from any shortcoming in its failure to afford the plaintiff a safe mode of transport upon her departure.

One can well imagine other analogous circumstances to gambling and intoxication. Compulsive spending or inappropriate credit canvassing would be other examples.

Conclusion:

The common law, in recent times, has recognised that individual autonomy and responsibility are fundamental values: see Romeo at [21], [47], [122-124]; Agar v. Hyde (2000) 201 CLR 552 at [12-15], [20], [68], [90], [125-127]; Perre v. Apand (1999) 198 CLR 180 at [114];Reeves v. Commissioner of Police of the Metropolis [2001] AC 360 at 368.

Such values have assumed a prominent role recently in the disposition of liability outside the traditional, or non-delegable classes of duty.

It remains to be seen what moment such trend will attract in the promulgation of the tort reform proposals presently under national consideration.